Last reviewed 7 December 2015
The Personal Protective Equipment at Work Regulations 1992 impose various requirements on employers with regard to suitable personal protective equipment. Robert Spicer reports on some recent prosecutions under the legislation.
Personal protective equipment (PPE) includes any equipment or clothing intended to be held or worn by people at work to offer protection against identified risks. PPE must be suitable for the hazards it is intended to protect against, be maintained in an effective and proper working order, be replaced if found to be defective and have designated storage accommodation. Employees must be trained in its use and given specified information and instructions, including practical demonstrations where necessary.
The most recent example of the application of the relevant regulations is the case of McPake v SRCL Ltd (2014).
M was employed as a driver by S, a clinical waste management company. In August 2011 he was decanting a loose waste bag from a nearly empty bin into a fuller bin when he was stuck by a needle in his upper thigh.
In November 2011 M was dismissed for gross misconduct. He claimed compensation from S for a breach of the Personal Protective Equipment at Work Regulations 1992 (PPE) on the basis that his protective trousers had not protected his thigh where the needle made contact. On behalf of S it was argued that M should not have been handling loose waste, that the accident had been his own fault and that he had been acting beyond his instructions and training. M argued that the incident had caused him psychological trauma which had resulted in his dismissal.
The Scottish Outer House decided as follows.
M’s actions had been carried out in the course of his employment. They were for the benefit of S and he had been exposed to a risk at work so that the PPE Regulations applied.
There was an added risk in decanting loose bags because they had to be raised higher than mid-thigh level to be removed from the bins which came up to chest height, to be placed into another bin.
The means of protection relied on by S were not equally or more effective in the absence of a clear system for dealing with nearly empty bins.
S should have prohibited drivers from decanting and should have instructed drivers either to leave nearly empty bins or to uplift such bins.
If S had carried out an assessment for the purposes of the PPE regulations, it would have recognised that when waste bags were being decanted there was an additional risk of needlestick injuries. This risk had not been prevented, controlled or avoided by the standard issue needleproof trousers and by the instructions to carry bags by the neck and away from the body.
M had been trained to decant from nearly empty bins. He was not prohibited from doing so, it was a reasonable thing for him to do and there was no fault on his part.
M was a vulnerable individual due to pre-existing stressors. The mild disorder which he suffered as a result of his injury was solely attributable to the incident.
M’s dismissal could not be attributed to the incident.
Compensation of £4000 would be awarded.
Another relatively recent example, with similar facts, is the case of Threlfall v Hull City Council (2010). T, an employee of H, was removing debris and rubbish left by tenants of council houses. In the course of handling a bin bag full of rubbish, he suffered a serious cut to his finger. He was wearing standard issue cloth and suede gloves at the time of the incident. He did not know what had caused the injury. He claimed compensation from H under the PPE Regulations on the basis that better quality gloves should have been provided.
At first instance, the court ruled that the risk of injury from sharp objects was very low, despite there being a foreseeable risk that sharp objects would be encountered in the course of T’s work. H had carried out a risk assessment dealing with garden clearance. This did not deal specifically with the risk of laceration and the standard issue gloves were not suitable. However, the claim failed. T appealed to the Court of Appeal, which decided the following:
The appeal succeeded. H was liable.
The risk assessment had been manifestly defective.
The risk of laceration should have been dealt with specifically and the type of gloves required should have been assessed in the light of that specific risk.
The PPE Regulations 1992 apply wherever a residual risk of harm exists.
If the relevant equipment did not prevent or adequately control the risk of injury, then it was unsuitable.
The risk of laceration injury to employees was clearly more serious than minimal and the gloves were unsuitable within the meaning of the PPE Regulations 1992.
The manufacturer’s description of the gloves stated that they were suitable for minimal risks only.
The cost of PPE
The issue of the cost of PPE was considered by an employment tribunal in the case of Associated Dairies Ltd v Hartley (1979).
An improvement notice was issued to AD, ordering it to provide safety footwear free of charge for employees who used roller trucks.
An employee had suffered a fractured foot when the wheel of one of his trucks ran over his foot.
The company made safety footwear available at cost, with a credit system of payment by which employees could acquire the boots at £1 per week. AD appealed against the notice on the grounds that it was too costly and out of proportion to the risk. It stated that its own existing scheme was reasonable and in line with trade practice.
The decision of the tribunal was that the appeal succeeded and the improvement notice was overturned. It made the following points.
Whether a particular solution to a safety problem is reasonably practicable depends on all of the circumstances. It is proper to consider the extent of the risk and the time, trouble and expense involved in any proposed solution. A solution is reasonably practicable when it is in proportion to the risk.
In this case, the company’s existing policy was in proportion to the risk. The proposed solution in the improvement notice was not in proportion. In particular, it was relevant that only six employees at AD’s supermarket had bought the boots. The cost of supplying them free of charge to all employees at the company’s locations would be £20,000 in the first year and £10,000 each succeeding year.
An inspector cannot validly issue an improvement notice merely because a company is not using some device or measure which is available.